A friend-of-the-court brief signed exclusively by prominent Republicans is in the works that urges the U.S. Supreme Court to find a constitutional right to same-sex marriage, according to multiple sources familiar with the planned document.
Ken Mehlman, who’s gay and former chair of the Republican National Committee, is leading the effort to gather signatures for the filing. Mehlman didn’t immediately respond to a request for comment.
The effort recalls a similar GOP brief led by Mehlman and filed before the Supreme Court in 2013 that argued against the constitutionality of California’s Proposition 8. A total of 131 individuals signed the brief in an unprecedented demonstration of support for marriage equality within the Republican Party.
One source familiar with the planned brief said the legal arguments will be along the lines of the filing from Western Republicans before the U.S. Tenth Circuit Court of Appeals, which struck down bans on same-sex marriage in Utah and Oklahoma. That brief made a conservative case for same-sex marriage by arguing that it promotes the values of stability, mutual support and obligation and that striking down bans on gay nuptials isn’t judicial activism.
In January, the U.S. Supreme Court agreed to consider lawsuits from Michigan, Ohio, Kentucky and Tennessee seeking marriage rights for same-sex couples. It’s anticipated justices will deliver a nationwide ruling on the issue by the end of June.
It’s unclear when the brief will be filed before the Supreme Court. The deadline for filing a friend-of-the-court brief in favor of plaintiff same-sex couples is March 6.
A spokesperson for Rep. Ileana Ros-Lehitnen (R-Fla.), one of two sitting House members who signed the Prop 8 brief, affirmed she had signed the brief from Mehlman.
“Yes, she is a signatory to the Mehlman amicus brief,” said Keith Fernandez, a Ros-Lehtinen spokesperson.
The office of the other Republican in Congress who reportedly signed the Prop 8 brief, Rep. Richard Hanna (R-N.Y.), didn’t respond to a request for comment on whether he also penned his name.
Also acknowledging that he agreed to sign the brief was Wyoming State Rep. Dan Zwonizter, who came to national attention for speaking out in 2007 against a measure that would have prohibited recognition of same-sex marriage in Wyoming.
“I’m pleased to offer my support on the amicus curiae brief, just as I was in support of the Tenth Circuit brief, because the argument is substantially the same, and I hope we’ll prevail like we did in the Tenth Circuit,” Zwonizter said.
Although Mehlman is leading efforts on the brief, Zwonizter said he was contacted by the D.C.-based group Civitas Public Affairs two weeks ago about the filing and hasn’t yet seen the document. That group is run by LGBT advocates Patrick Guerriero and Bill Smith, who formerly headed Gill Action Fund.
Also affirming that he signed the brief is Jim Kolbe, a gay former U.S. House member who represented Arizona in Congress and was among the Republicans who signed the Prop 8 brief. Kolbe acknowledged he signed the brief via email to the Blade and didn’t immediately respond to a follow-up.
“I signed an amicus brief,” Kolbe said. “I believe it is the one that Ken Mehlman is associated with, although he was not the person who contacted me about adding my name as a signator.”
It remains to be seen whether other Republicans in Congress who support same-sex marriage will sign the brief, or whether the final tally of signers will exceed the 131 Republicans who signed in 2013.
Besides Ros-Lehtinen and Hanna, other GOP members of Congress who support marriage equality include Reps. Charlie Dent (Pa.), David Jolly (Fla.), Robert Dold (Ill.) and Carlos Curbelo (Fla.) as well as Sens. Rob Portman (Ohio), Susan Collins (Maine), Mark Kirk (Ill.) and Lisa Murkowski (Alaska).
James Slepian, a Dold spokesperson, said his boss is considering signing.
“We got a copy of the brief yesterday and are taking a look at it this week,” Slepian said. “It’s obviously an issue that my boss is very engaged in as a supporter of marriage equality and I’ll shoot you a note once we have a chance to read through the brief.”
The offices of the remaining lawmakers didn’t respond to the Washington Blade’s request for comment. Portman also already demurred on supporting the litigation pending before the Supreme Court, telling the Washington Blade in January, “I support the democratic process, and I think it is working.”
In recent years, Mehlman has been an advocate of marriage equality, raising money for the Prop 8 case, helping with lobbying efforts to legalize same-sex marriage in New York and counseling President Obama on his endorsement of gay nuptials in 2012.
But during his tenure with the RNC, Mehlman worked to pass state constitutional amendments at the ballot barring same-sex marriage and helped the George W. Bush campaign, which made passage of a U.S. constitutional amendment banning same-sex marriage a central issue. Rumors persisted for years that he was gay, but Mehlman didn’t come out publicly until 2010. Later, he apologized for those efforts against marriage rights for gay couples.
“At a personal level, I wish I had spoken out against the effort,” Mehlman said in an interview with Salon in 2012. “As I’ve been involved in the fight for marriage equality, one of the things I’ve learned is how many people were harmed by the campaigns in which I was involved. I apologize to them and tell them I am sorry. While there have been recent victories, this could still be a long struggle in which there will be setbacks, and I’ll do my part to be helpful.”